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Ohio Casualty Insurance Co. v. Henderson5/29/1997
En Banc
FELDMAN, Justice
Ohio Casualty Insurance Company sought review of a court of appeals' opinion holding the "expected or intended" injury exclusion in a homeowner's insurance policy did not apply when the insured, Joel Henderson, committed an armed robbery that resulted in the death of Padriac Hill. Ohio Casualty Ins. Co. v. Henderson, 187 Ariz. 155, 927 P.2d 815 (1996). We granted review to determine if Henderson's active participation in the planning, preparation, and commission of a violent armed robbery fell within the exclusion. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), Ariz. R. Civ. App. P. 23, and A.R.S. § 12-120.24.
FACTS AND PROCEDURAL HISTORY
On April 11, 1993, Henderson and Damon Kerl, armed with guns, entered a Piccadilly Restaurant, while Noel Jackson waited outside in the getaway car. Once inside the office area, either Henderson or Kerl pointed a gun at an employee's head and ordered him to open the safe. After the employee complied and handed over the cash contents of the safe, one of the assailants, probably Kerl, shot the employee in the head and killed him. The trio then fled the area in the car.
Nine days later, Henderson, Kerl, and Jackson, again armed, entered a movie theater. With guns drawn, they ordered Padriac Hill and some fellow employees, who were working at the concession counter, to the floor. They instructed Hill to open the safe; he did not know the combination and offered to call a manager who could open it. Rather than wait, one of the robbers shot Hill in the head. He died at the scene.
Alleging Henderson was acting in concert with Kerl and Jackson, Hill's parents asserted a wrongful death claim and sought recovery from an Ohio Casualty homeowner's insurance policy. Henderson is an insured under the liability coverage section of the policy. The "expected or intended" injury exclusion of the policy states:
1. Coverage E - Personal Liability and Coverage F - Medical Payments to Others
do not apply to bodily injury or property damage:
a. which is expected or intended by the insured;
Ohio Casualty brought a declaratory judgment action against Henderson and the Hills to determine whether the exclusion negated coverage. Ohio Casualty moved for summary judgment and the Hills filed a cross-motion for summary judgment. For purposes of the motions, the parties stipulated to several facts. First, they agreed that Henderson, Jackson, and Kerl "specifically discussed not harming anyone at the theater with any of the weapons. However, prior to the [robbery in which Hill was killed, Henderson and Kerl] committed a robbery at the Piccadilly Restaurant in which another victim was shot and killed." The parties further agreed that Henderson "gave his gun to , a minor, during the robbery, and the bullet from that gun killed Hill," and that "Henderson did not pull the trigger of the gun that killed [Hill]."
The trial court granted summary judgment in favor of Ohio Casualty. The court of appeals reversed, a majority finding that the exclusion did not apply because there was no evidence that Henderson expected or intended the injury that caused Hill's death. 187 Ariz. at 155, 927 P.2d at 815. The exclusion, the court held, did not apply to criminal conduct or to recklessness; the fact that the armed robbery risked serious injury and death did not mean that Henderson expected or intended the resulting bodily injury. Id. at 156, 927 P.2d at 816.
The Dissenting Judge found that Arizona law did not compel the majority's result. He argued that coverage should not be extended because Henderson actively participated
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